Frequently Asked Questions

DIVORCE

In order to legally end your marriage, you must apply to the court for a divorce. An application for divorce can only be filed in a Superior Court of Justice or Family Court branch of the Superior Court of Justice.

A divorce will not be granted unless you have been separated from your spouse for at least one year or you have established one of the other bases for a breakdown of the marriage (adultery or mental or physical cruelty).

If you have already been separated for at least a year, an application for divorce that does not include other claims, such as custody or access, support or division of property, can usually be completed within four to six months.

If your application includes other claims, the time that it takes to complete the case will depend on how complicated the issues are and whether the parties can agree on all or some of the issues.

In total, court fees are $447 to obtain a divorce in Ontario. The first payment of $167 is due when the application for divorce is filed which includes court fees of $157 and $10 that is collected for the federal Department of Justice. Additional court fees of $280 are paid before the divorce is reviewed by the court.

Court fees may be paid by cash, cheque or money order payable to the Minister of Finance. If you are unable to pay the court fees, you may qualify for a fee waiver.

While you are able to file an application for divorce on your own, you should consult a lawyer before doing so. A lawyer can help you understand the issues that may be involved in your case and the effects that a divorce may have on your rights and obligations. For example, you may lose your entitlement to a division of property and your benefits under a spouse’s health insurance plan after a divorce has been granted.

In most cases, in order for a divorce to be granted, you must have lived separate and apart from your spouse for at least one year. While you can begin the divorce process before this period has passed, it cannot be completed until the year has passed.

Where another basis for the breakdown of the marriage has been established, such as adultery or mental or physical cruelty, the court can grant the divorce at any time, although additional steps will be necessary. You should speak with a lawyer for more information regarding the process for obtaining a divorce on one of these bases.

You may be considered to be living separate and apart while continuing to live in the same home, although it will depend on the facts in your case. Generally, the courts require clear evidence that spouses are no longer living together in a spousal relationship when they continue to live in the home. If you are not sure about whether you would be considered separated in your circumstances, you should speak with a lawyer.

You can ask the court for a divorce before the other issues have been decided by either starting an application for divorce or, if one has already been started, bringing a motion to ask for a divorce order.

However, the court may not grant the divorce before the other issues have been decided. For example, if you have children, a court will not grant a divorce until you have shown that you have made adequate child support arrangements. Click here for more information about child support obligations.

A joint application for divorce is a request that is made by both spouses for a divorce order, with or without other terms (for example agreed upon child support payments). With a joint application, both spouses must complete the documents that are necessary in order to obtain the divorce.

No, only married spouses need a divorce. People who have lived together may, however, have other issues that need to be decided, including custody and access, support and division of jointly owned property. These rights and obligations are not always the same as they are for married spouses, particularly in relation to rights to property. You should speak to a lawyer about your rights and obligations arising from your relationship.

PROCESSES

If claims will be made for custody of, or access to children, you should start the case in the municipality where the children ordinarily live. Otherwise, it can be started in the municipality where either party lives. For a complete listing of the court addresses in Ontario, click here.

If there is both an Ontario Court of Justice and Superior Court of Justice in the municipality, you must start your case in the court that can decide your issues. Many family law cases can be started in the Ontario Court of Justice. However, if claims are being made about property (including a matrimonial home) or divorce, the case must be started in the Superior Court of Justice. For more information about which claims are heard in each of these courts, click here.

If you don’t agree with claims in the application or if you want to make a claim of your own, you have up to 30 days to respond (or 60 days if the application is served outside of Canada or the United States). The document that you prepare in response to an application is called an answer. If you do not file an answer, the applicant can ask the court for an order, based on the claims in the application, without hearing from you and you are not entitled to participate in the case any further.

For more information on how to respond to an application, see the Guide to Family CourtProcedures for the court where your case was started. Click on the court below to be taken directly to the appropriate Guide to Family Procedures:

If you qualify, Legal Aid Ontario can help you pay for a lawyer. More information about Legal Aid Ontario can be found at www.legalaid.on.ca and they can be reached toll free at 1-800-668-8258.

Advice Lawyers are available at certain times in the Family Law Information Centre (FLIC). An Advice Lawyer can provide general legal information to anyone who comes to the FLIC for help, as well as legal advice to parties who qualify for further assistance.

To find out when an Advice Lawyer is available, contact the family law office at your local courthouse. Duty Counsel may also be available, on the day that family cases are heard, to assist parties without lawyers in the courtroom.

The Family Law Rules set out the steps in the family court process. In most cases, the parties meet with a judge at least once at the beginning of the process to discuss the issues in dispute and how they can be resolved, and the steps that should be taken for the case to proceed (for example ensuring that financial information has been exchanged). This meeting is called a case conference.

Following the case conference, either party may bring a motion for a temporary order (for example for exclusive possession of a matrimonial home, custody of children or support). At a motion, a judge reviews the affidavit evidence from both parties and decides whether to make the order that has been requested.

If the case has not been settled, a case conference is usually followed by a settlement conference, which focuses on settling or narrowing the issues in dispute. The judge at a settlement conference may also be able to provide his or her view of how the case might be decided if it goes to trial.

If the parties cannot settle the case after one or more conferences have been held, a trial may be necessary. A trial management conference may be held in advance of a trial in order to determine how the trial will proceed.

Before each court attendance, both parties must serve the other party and file certain documents with the court. For more information about which documents must be filed at each step, see A Guide to Family Procedures for the court where your case is being heard.

Click on the court below to be taken directly to the appropriate Guide to Family Procedures:

Many of these steps may be avoided if the parties agree to the outcome of the case. If an agreement is reached on a day when you are not in court, you can prepare and file Form 14B: Motion Form to request an order with the terms you have agreed to. This is called an order on consent.

The number of times parties will have to go to court and the length of time that it takes to resolve a case will depend on a number of factors, including how complicated the case is and whether the parties can agree on all or some of the issues.

Usually, you must attend a case conference before you can bring a motion to ask the court for a temporary order. However, if your situation is urgent, you can ask the court to hear your motion before a case conference has been held.

You should also call the court where you will be filing your motion to see whether you will be given a time to attend court to have the motion heard or whether the documents will be reviewed by the court without you being present.

You should tell your lawyer or every other party as soon as possible that you will need to postpone the court date. This is referred to as an adjournment.

To ask for an adjournment before your court date, you should serve every other party with Form 14B: Motion Form and file it with the court. On the motion form, you can indicate whether the other parties have agreed to adjourn the court date. If the other parties have not agreed, you or your representative will still have to go to court on the day that has been scheduled to explain why you need an adjournment.

If you are asking for an adjournment on an emergency basis, contact the court office as soon as possible so that they can notify the judge of your request.

Custody is about decision-making. Access is about how much time children spend with each parent. Children’s access arrangements can vary greatly. In some situations, children live primarily with one parent and visit regularly with the other. In others, children divide their time equally or almost equally between the parents’ homes.

If a court order for access is not being followed, you can bring a motion to ask the court to require the other party to comply. If there are serious problems with access arrangements, the court can impose penalties and, if it is in the child’s best interests, make changes to the custody/access arrangements.

Federal authorities will likely require written confirmation of the other parent’s consent before allowing the children to be removed from Canada. Standard consent forms are available from the federal government. If the other parent will not give his or her permission, you may need a court order to permit the travel.

If your order is no longer appropriate, you can have it changed with the other parent’s consent. You can bring a motion to change on consent by filing a Form 15C: Consent Motion to Change with Form 14B: Motion Form. If you cannot agree to the change, you can serve and file Form 15: Motion to Change. Usually, the court will only change a custody or access order where there has been a significant change in the child’s circumstances.

Unless you have a court order or agreement that specifically says that you may move with the children, you should speak to your lawyer about the steps that should be taken before you finalize your plans. In most circumstances, your proposed move will be an issue for the court to decide if you and the other parent cannot come to an agreement.

CHILD SUPPORT

Under the Child Support Guidelines, child support is based on the annual gross income of the paying parent and the number of children that support is being paid for. Click here to look up the child support payment for your circumstances.

In limited circumstances, the court may order an amount that is different than in the child support guidelines, such as cases where parents share custody (see Section 9) or the payments would result in undue hardship for the payor (see Section 10).

Maybe. Under Ontario law, children are usually entitled to support up to the age of majority (18), and for a period of time afterwards if they are going to school full-time. Where a child is over 18, the amount of the child support payment may be adjusted if it is inappropriate in light of the child’s needs and/or the parents’ financial circumstances.

Under the Child Support Guidelines, you must provide your income tax returns and notices of assessment for the last three years, as well as documentation of your earnings to date for the current year. If you are self-employed or own a company, additional documents are required. If you are involved in a court case, you will also have to file a financial statement [click here to see form 13 and 13.1].

For more information on how to prepare a financial statement, see the Guide to Family Procedures for the court where your case was started. Click on the court below to be taken directly to the appropriate guide:

If support payments are not being made according to the terms of a court order or separation agreement that has been filed with the court, the FRO or the support recipient can take steps to collect money that is owed. This may include getting payments directly from the support payor’s employer, bank garnishments or filing writs against property that the support payor owns. The FRO can also ask the court to suspend a payor’s driver’s licence if payments are not being made.

Child support payments can be made directly to the recipient if he or she agrees not to have them made through the Family Responsibility Office (FRO). If a support order has been made, both parties must complete and sign a Notice of Withdrawal and send it to the FRO. The Notice of Withdrawal is available online at www.forms.ssb.gov.on.ca.

Support payments must be made through FRO unless the parties have sent a completed Notice of Withdrawal to FRO.

You will need a new order to change the amount of the child support payment. You can determine the appropriate amount of child support based on your annual gross income and the number of children that support is being paid for by reviewing theChild Support Guideline tables.

If you and your ex agree on the revised amount and you are asking the court to change child support only, you can file Form 15D: Consent to Change Child Support. If you are asking the court to change other provisions in addition to child support, you can bring a motion to change on consent by filing Form 15C: Consent Motion to Change with Form 14B: Motion Form. If you can’t agree what the payment should be, you can serve and file a Form 15: Motion to Change. Click here to see the forms.

If the Family Responsibility Office is enforcing the support order, they will continue to collect the current payment until the order has been changed.

Orders that were made by a court in another province or territory under the Divorce Act (link to Justice Law website) are automatically recognized in Ontario. To have these orders enforced in Ontario, they must be registered with the Family Responsibility Office.

Orders that have been made in another province or territory in Canada under provincial or territorial legislation must be registered in an Ontario Court before the order can be enforced. This process is governed by the Interjurisdictional Support Orders Act.

If the country where the child support order was made has entered into a formal arrangement with Ontario to enforce each other’s support orders, they are known as a “reciprocating jurisdiction”. An order from a reciprocating jurisdiction can be enforced in Ontario, but first it must be registered in an Ontario court.

If a province, territory or country has entered into a formal arrangement with Ontario to enforce each other’s support orders, they are known as a ”reciprocating jurisdiction”. An order from a reciprocating jurisdiction can be changed under the Interjurisdictional Support Orders Act.

Some support orders or separation agreements set out a specific date or event when the child support payments end (for example when a child leaves college or university). This is called a terminating event. If a terminating event has occurred and the support is being enforced by the Family Responsibility Office (FRO), you should contact the FRO to request that they stop enforcing the support payments.

If the order or agreement does not specify a terminating event, you will usually need either the consent of your ex or a court order to end your support payments. If your ex does not agree, you may need to file Form 15: Motion to Change in order to have the support payments stop. Click here to see the forms.

If support payments are not being made according to the terms of a court order or separation agreement that has been filed with the court, the FRO or the support recipient can take steps to collect the money that is owed. This may include getting payments directly from the support payor’s employer, bank garnishments or filing writs against property that the support payor owns. The FRO can also ask the court to suspend a payor’s driver’s licence if payments are not being made.

Support payments can be made directly to the recipient if he or she agrees not to have them made through the Family Responsibility Office (FRO). If a support order has been made, both parties must complete and sign a Notice of Withdrawal and send it to the FRO. The Notice of Withdrawal is available online at www.forms.ssb.gov.on.ca.

Payments must be made through FRO unless the parties have sent a completed Notice of Withdrawal to FRO.

You will need a new order to change the amount of the payment that is being made pursuant to a court order or separation agreement that has been filed with the court.

If you and your ex agree on the revised amount, you can bring a motion to change on consent by filing a Change Information Form (Form 15A) and a Consent Motion to Change (Form 15C). If you can’t agree about what the payment should be, you can bring a Form 15: Motion to Change to request a change in the support payment. You will also have to file a Change Information Form (Form 15A). Click here to see the forms.

To have the spousal support changed, you will need to show the court that there has been a significant change in circumstances that affects the amount of the payment that is being made.

If the Family Responsibility Office is enforcing the support order, they will continue to collect the current payment until the order has been changed.

Orders that were made by a court in another province or territory under the Divorce Act (link to Justice law website) are automatically recognized in Ontario. To have these orders enforced in Ontario, they must be registered with the Family Responsibility Office.

Orders that have been made in another province or territory in Canada under provincial or territorial legislation must be registered in an Ontario Court before the order can be enforced. This process is governed by the Interjurisdictional Support Orders Act.

If the country where the spousal support order was made has entered into a formal arrangement with Ontario to enforce each other’s support orders, they are known as a “reciprocating jurisdiction”. An order from a reciprocating jurisdiction can be enforced in Ontario, but first it must be registered in an Ontario court.

If a province, territory or country has entered into a formal arrangement with Ontario to enforce each other’s support orders, they are known as a ”reciprocating jurisdiction”. An order from a reciprocating jurisdiction can be changed under the Interjurisdictional Support Orders Act.

MEDIATION

Family mediators can help you resolve child custody and access, child and spousal support, and division of property issues. Some family mediators can also help with child protection disputes, although these mediators require additional qualifications.

Mediation services are available at certain family court locations either on-site or in the mediator’s office.

Private family mediation services may be available where you live. Mediators come from different professions. For example, a mediator may be a social worker, psychologist, or a lawyer. Click here for more information about what to look for when hiring a private mediator.

Agreements from mediation are not binding until they have been incorporated into a written agreement that is signed by both parties (e.g. a separation agreement, minutes of settlement or consent) or into a court order. Both parties should obtain independent legal advice before the agreement is finalized to ensure that they understand their rights and obligations, as well as the effect of the proposed agreement.

OTHER

There are different procedures for changing a child’s name depending on the child’s age, whether the child was born in Ontario and who has custody of, or access to the child. For more information about this process, click here.